I have been “mistaken,” “misled,” “misrepresented,” and been “unaccountably in error,”
and am sorry if you have been offended

Friday, August 02, 2013

Some Thoughts around the Looming Cabinet Legislation Bureau Makeover

I
thought that I’d post something that complemented, rather than overlapped with,
media reports and also avoided grappling with the polemics that are sure to
emerge. I also reserve the right to alter my thoughts on a later, more public occasion
since this post represents some of my initial impressions and is largely
unedited.

The Cabinet Legislation Bureau (CLB) and
the New Komeito are regarded as the two most significant obstacles to a
reinterpretation of the Japanese Constitution that would allow Japan to engage
in collective self-defense. The Abe Cabinet is about to a) eliminate the first
problem while b) keeping bureaucratic dissatisfaction to a minimum by
appointing a diplomat who strongly favors reinterpretation as secretary-general
of the CLB and nominating the current secretary-general, a former METI
official, as the replacement for a Supreme Court justice, a former diplomat,
who had retired on July 20 after reaching the constitutional age limit (70).

With regard to the “first problem”, some
people have wondered why the Prime Minister (or the Cabinet) can’t simply order
the CLB to change its interpretation. After all, the CLB is an agency established
within the Cabinet, isn’t it? The answer is twofold. He can’t, and he doesn’t
have to. The relevant task of the CLB according to its charter law is to “give
opinions concerning legal issues to the Cabinet, and the Prime Minister and the
Minister of each Ministry.” It would be an absurdity to seek an opinion and to
simultaneously dictate what that opinion should be; indeed the law does not
give the Cabinet or the Prime Minister the power to do so. Of course it is just
an opinion; the Cabinet, and the Prime Minister and the Minister of each
Ministry are free to ignore the opinions of the CLB and do as they please, and
take their chances in the courts if necessary. Then why don’t they do so with
regard to collective self-defense?

I believe that there is a historical
explanation. It must be hard to imagine these days, when you will have
difficulty finding any LDP Diet members who oppose reinterpretation, that the early
LDP largely took a minimalist approach to self-defense, many not necessarily
for tactical purposes—let’s first concentrate on building up the Japanese
economy—but from a genuinely pacifist perspective. Some of them had defied the Japanese
military and suffered during the long wars, while others had submitted and come
to grief. For these otherwise conservative politicians, the CLB’s
interpretation must have been exactly what they wanted, while those who opposed
it did not have the power to mount a challenge to the leadership around the issue.
The LDP has a whole has turned more sanguine in recent decades as the result of
the generational shift that has diminished visceral aversion to all matters
military and the increasing sense of insecurity over threats emanating from
China and North Korea. Thus, the coalition that emerged in the late 1990s with
the pacifist Komeito remains as the only structural impediment to the
reinterpretation of the Constitution.

This will not be the end of legal hurdles
to reinterpretation. With the passing of the years, during which successive cabinets
have explicitly or implicitly endorsed this interpretation, significant
legitimacy has accreted, precedent that needs to be handled with great care if
it is to be breached without serious harm to the rule of law. Still, the institutional
obstacle is being removed; the sticks are moving downfield for sure.

The remainder of this post is for people who
like inside baseball stuff.

The secretary-general “supervises the
activities” of the CLB, which means among other things having final say on
opinions regarding the constitution. The position is rotated between officials
seconded from the Ministry of Finance, the Ministry of Economy, Trade and
Industry, and the former Ministry of Home Affairs, now part of the Ministry of
Internal Affairs and Communications, who fulfill several key assignments before
they are elevated in their turn to the top post. Of course the other ministries
as well as the judiciary and the Public Prosecutors Office also second officials
to the CLB and most of the MOF, METI, and (now) MIC officials never make it to
secretary-general. But only an official from the three ministries does. Until
now, apparently.

The replacement of the secretary-general,
however, requires handling with care. First, interpreting the constitution is but
a small part of the CLB’s legislation-related work (unless it decides to seriously
consider changing its mind on the substantive focus of this post), in which the
secretary-general is very much involved. Competence and familiarity with the
interpretation process is highly desirable. Moreover, the secretary-general is
also the authoritative voice of the CLB, nay, the Cabinet, in Diet sessions and
committees on legal matters. It is very different, say, from picking Koichi
Hamada as your economic guru, influential, true, but still one of many voices
that have a say in making economic policy. An ill-advised choice could spell
political disaster.

Second, a Prime Minister does not want to
unduly alienate the bureaucracy, and the Abe administration appears to have
taken the political and policy outcomes of the DPJ’s experiences in conflicts overt
and clandestine with the bureaucracy to heart. However urgent the Abe
administration’s desire might be to take the CLB in a new direction might be, taking
away the CLB post without compensation could not only be a cause of alienation
with the METI bureaucracy—political assignments, which have so far favored
METI, are fine but METI should be around after Mr. Abe leaves the political
scene—but also send a chill throughout the rest of the bureaucracy. Yet in another
case of good fortune for Mr. Abe, a position has just opened up in the Supreme
Court, a position reserved for all practical purposes traditionally filled by MOFA,
the very ministry that is professionally inclined to favor reinterpretation on
collective self-defense and, unlike academics, comes with significant practical
experience around the legislative process, if not nearly the equivalent of that
of the other ministries on the domestic process. It is hard to gauge the relative
value of the two assignments. A Supreme Court justice carries significant
constitutional prestige; the CLB secretary-general far less so. But the SCJ is merely
one among fifteen, while the CLB secretary-general is the undisputed leader of
a major institution. Perhaps the difficulty (at least for me) is its own answer
and the trade is about as close to a wash as can be engineered. All this is not
to imply that METI would not meekly submit if the matter were put to it without
compensation. But friction is being been minimized, and that’s not a small
matter to a prime minister whose personal proclivities already lean towards comity.

Oh, and make no mistake, this cannot have
been a decision made up on the spur of the moment. The Supreme Court vacancy was
a certainty from the very moment of the appointment, a fact that Mr. Abe’s
political team could not have missed.

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About Me

After graduation, Jun Okumura promptly entered what is now the Ministry of Economy, Trade and Industry and stayed in in its ecosystem most of his “adult” life. Along the way, he had pleasant stops in an assortment of Japanese quangos (Japangos?), overseas assignments and government agencies. After thirty years, though, it dawned on him that he had no aptitude whatsoever for administration and/or management. Armed with this epiphany, he went to the authorities and arranged an amicable separation; to come out, as it were. He is completely on his own IYKWIAS, but he and the METI folks remain “good friends.” He currently holds the titles of “visiting researcher” at the Meiji Institute for Global Affairs (no, that MIGA) and counselor at a risk analysis firm that dares not speak its name. This gives him plenty of time to blog or make money on his own. His bank account says that he does too much of the first, and insists that he do more of what he calls “intellectual odd jobs”. He wants to be paid to write fulltime, or better, talk—where the easy money is—but that distinction has largely escaped him. He really should not be referring to himself in the third person; he is not that famous.